PoffenbargerComplaint AsFiled

Case: 3:22-cv-00001-TMR-SLO Doc #: 1 Filed: 01/02/22 Page: 1 of 14 PAGEID #: 1
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO – Western Division at Dayton
MICHAEL POFFENBARGER : Case No.: 3:22-cv-1
On behalf of himself and others
similarly situated :
c/o Christopher Wiest, Esq.
25 Town Center Blvd, Ste. 104 :
Crestview Hills, KY 41017
:
Plaintiff
v. :
Hon. FRANK KENDALL :

In his official and individual capacities as
Secretary of the Air Force :
1670 Air Force Pentagon
Washington, DC 20310-1670 :
and :
Lt. General ROBERT I. MILLER :

Surgeon General of the Air Force :
1780 Air Force Pentagon
Falls Church, VA 22041 :
and :
Lt. General RICHARD W. SCOBEE :

Commander, Air Force Reserve Command :
555 Robins Parkway, Ste. 250
Robins Air Force Base, GA 31098 :
and :
Maj. General JEFFREY T. PENNINGTON :

Commander, 4th Air Force :
895 Baucom Ave., SE
March Air Reserve Base, CA 92518 :
and :
1
Lt. Colonel CHRISTOPHER KOJAK :

Commander, 445th OSS :
5439 McCormick Ave
Wright-Patterson AFB, OH 45433 :
and :
Colonel RAYMOND SMITH :

Commander, 445th Airlift Wing :
5439 McCormick Ave
Wright-Patterson AFB, OH 45433 :
And :
United States Of America :

c/o U.S. Attorney SDOH and
U.S. Attorney General :
Defendants :
PLAINTIFF’S VERIFIED CLASS ACTION COMPLAINT FOR DECLARATORY

JUDGMENT AND INJUNCTIVE RELIEF
Plaintiff, through Counsel, for himself and others similarly situated, states for his
Verified Complaint as follows:
Introduction
1. This action involves the systematic effort of the Defendants, and those who report
to them, to flagrantly violate federal law, and specifically the Religious Freedom and Restoration
Act, 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (“RFRA”), in a concerted and deliberate
effort to violate the rights of members of the Air Force. In 2021, the Plaintiff, Air Force 2LT
Michael Poffenbarger, submitted a request for a religious exemption to Air Force vaccination
mandates. That request was processed by and through his chain of command. As part of that
process, he was interviewed multiple times by an Air Force Chaplain to determine the sincerity of
his beliefs and that the mandates substantially burdened those beliefs. The result of each interview
2
confirmed the sincerity of his beliefs and that the Air Force’s vaccination policy substantial
burdened those beliefs.
2. On a perfunctory basis, the request for the religious exemption was denied, citing
force protection requirements; in fact, the Air Force has failed to approve a single religious
accommodation request. While at the same time, it has approved thousands of administrative or
medical exemptions to the same requirements. The Plaintiff appealed to the Surgeon General of
the Air Force, who denied his appeal. This action follows.
Parties
3. Plaintiff is an active reservist within the United States Air Force, who is currently
stationed at Wright Patterson Air Force Base, within this judicial district.
4. Defendants are the duly installed Secretary of the United States Air Force
(Defendant Kendall), the Surgeon General of the Air Force (Defendant Miller), the Commander
of U.S. Air Force Reserve Command (Defendant Scobee), Commander of the Fourth Air Force
(Defendant Pennington), and Plaintiff’s immediate Squadron (Defendant Kojak) and Wing
Commander (Defendant Smith). All Defendants were, as explained herein, personally involved
with the complained of conduct.
Jurisdiction and Venue
5. Subject matter jurisdiction over the federal claims and causes of action asserted by
the Plaintiff in this action is conferred on this Court pursuant to 28 U.S.C. §1331, 28 U.S.C.
§1346(a)(2), 28 U.S.C. §1361, 28 U.S.C. § 2201, 28 U.S.C. § 2202, 42 U.S.C. 2000bb-1(c), and
other applicable law.
3
6. Venue is proper in this District under the provisions of 28 U.S.C. § 1391(e)(1)(A)
and (B), in that at least one Defendant resides in this District, and that a substantial part of the
events or omissions giving rise to the claims in this case occurred in this district.
Facts
7. On or about September, 2021, Plaintiff, then on active duty for training and in
Officer Training School, received an order to be vaccinated by the Defendant Kendall, Secretary
of the Air Force. A true and accurate copy of that order is attached hereto as Exhibit 1.
8. Plaintiff then began the administrative process to seek a religious accommodation
under RFRA, and its implementing regulations, including, without limitation, Department of
Defense Instruction (“DoDI”) 1300.17.1
9. Ultimately, Plaintiff was commissioned in September, 2021, and permitted to
graduate Officer Training School, with the request for accommodation pending. He was then
returned to the active reserves, where he has been assigned to the 455th Operational Support
Squadron, located at Wright-Patterson, Air Force Base, which is located in his judicial district.
10. On or about October 2, 2021, Plaintiff received a direct order to be vaccinated from
his then-commander, Lt. Colonel Sopko (who has since been replaced by Lt. Colonel Kojak). A
true and accurate copy of that order is attached hereto as Exhibit 2.
11. Again, in response to this order, Plaintiff pursued administrative remedies under
RFRA, DoDI, and applicable Air Force Instructions, and his religious accommodation request was
sent to the Commander of Air Force Reserve Command, Defendant, Lt. General Richard W.
Scobee.
1
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/130017p.pdf (last visited
11/17/2021).
4
12. On or about October 22, 2021, Defendant, Lt. General Richard W. Scobee, denied
Plaintiff’s accommodation request. A true and accurate copy of that order is attached hereto as
Exhibit 3.
13. The Scobee denial first acknowledged the sincerity of Plaintiff’s religious beliefs,
but stated that mission readiness required the vaccination of the Plaintiff from COVID-19. At the
same time, Scobee has approved accommodations for administrative and/or medical reasons.
Thus, Scobee’s denial can only be explained as a hostility to Plaintiff’s religious beliefs, and not a
good faith application of RFRA. He is thus personally liable under RFRA for damages to Plaintiff,
and others similarly situated.
14. The Plaintiff then undertook an administrative appeal to the Surgeon General of the
Air Force, Lt. General Robert I. Miller, of Scobee’s denial, on October 30, 2021. A true and
accurate of that appeal, which also set forth in detail the Plaintiff’s religious beliefs, is attached
hereto as Exhibit 4.
15. On or about December 8, 2021, Lt. General Robert I. Miller also denied Plaintiff’s
appeal, a true and accurate copy of which is attached hereto as Exhibit 5.
16. In fact, as of the date of this Complaint, absolutely zero religious
exemptions/accommodations have been granted across the Air Force, and at least 2,130 such
requests have been denied.2 The Air Force has begun discharging such airmen.3
2
https://www.airforcetimes.com/news/your-air-force/2021/12/22/few-airmen-appeal-vaccine-
exemption-denials-as-covid-19-cases-spike/ (last visited 1/2/2022). See, also,
https://www.af.mil/News/Article-Display/Article/2882742/daf-processes-religious-
accommodations-requests/ (last visited 1/2/2022).
3
https://www.cnn.com/2021/12/13/politics/air-force-troops-discharged-covid-19-
vaccine/index.html (last visited 1/2/2022).
5
17. In the meantime, and belying any assertion that vaccination is mission-critical and
that no exemptions can be granted, the Air Force has approved at least 1,866 medical or
administrative exemptions.4 Miller’s actions are identical to Scobee, reflecting a hostility to
religious accommodation requests, while accommodating administrative and medical exemptions.
18. On December 12, 2021, Plaintiff received an order from his commander, Lt.
Colonel Christopher Kojak, forwarding an order from the 4th Air Force Commander, Major
General Jeffrey Pennington, attached as Exhibit 6. That order, which also incorporates an order
from his Wing Commander, Colonel Raymond Smith, requires him to be vaccinated on his next
duty day, which is Monday, January 3, 2022. The order indicates it is an order backed by punitive
action, specifically the possibility of court martial under Article 92, Uniform Code of Military
Justice (“UCMJ”) (10 U.S.C. § 892).
19. Upon information and belief, Defendant Kendall gave directives to Commanders,
through official and/or unofficial channels, that religious accommodations were not to be granted
to the COVID-19 vaccination policy. The evidence for this includes, without limitation, that not
a single such religious accommodation request has been granted, while both medical and
administrative exemptions have been granted, undermining any mission requirement argument.
20. Defendants Pennington, Kojak, and Smith, were each aware, at the time of their
actions that: (i) the Air Force, and Defendants Kendall, Scobee, and Miller each have failed to
grant (or even meaningfully consider) any religious accommodation requests; (ii) but have
processed and approved medical and/or administrative accommodations; but each, in violation of
RFRA, and (iii) that the accommodation could be granted consistent with Plaintiff’s military
4
https://federalnewsnetwork.com/air-force/2021/11/airmen-awaiting-covid-vaccination-
exemptions-must-stay-at-current-orders/ (last visited 1/2/2022).
6
duties; but nevertheless took, continue to take, and threaten to take additional actions against the
Plaintiff, including the threat of punitive actions including court-martial.
21. Because the order in question violates Plaintiff’s fundamental dictates of religion,
he is unable to comply with it, and cannot adhere to it, even if it means federal prison through the
UCMJ process.
22. To be clear, and without limitation, the Air Force has accommodated numerous
airmen, at least from a medical or administrative perspective, belying any claim that vaccination
is a must for mission accomplishment.
23. The Air Force has also accommodated persons with HIV, providing waivers to
permit them to remain in the service, demonstrating the ability to accomplish the mission.
24. Furthermore, the vaccination requirement, including with respect to COVID-19,
does not prevent infection, as breakthrough cases are increasingly becoming more prevalent.
25. However, the government must prove, but cannot prove, that it has a compelling
interest to mandate a vaccine that has not demonstrated prevention or transmission of a virus.
26. Among other methods, the Air Force could accommodate Lt. Poffenbarger’s
request by, without limitation:
a. Requiring testing to determine infection;
b. Temperature checks and/or other screening to determine infection;
c. Permitting and providing for Lt. Poffenbarger to become infected with COVID-19, so
as to develop what is now a recognized, long lasting, natural immunity;5
5
The Army itself has documented this in AR 40-562.
https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r40_562.pdf (last visited 11/23/2021).
7
d. Provide an exemption anyways in that vaccination will not guarantee immunity, and
there are members who are currently serving who are not immune to diseases they were
vaccinated for, yet they remain able to serve and deploy;
e. Requiring isolation to keep Lt. Poffenbarger away from those with the disease;
f. Place Lt. Poffenbarger in a position and/or Military Occupational Specialty that is
available for remote work or telework, and not in contact with other airmen;
g. Given the significant level of vaccine compliance within the military, accommodating
the few numbers of medical and documented religious exemption requests by providing
an exemption, which is not a burden;
h. As a second to last final option, place Lt. Poffenbarger in non-deployable status and/or
assignment to a unit that does not deploy overseas; and/or
i. As a final option, honorably discharge Lt. Poffenbarger.
Injunctive Relief Allegations
27. Plaintiff has and continues to have his fundamental constitutional and statutory
rights violated by these official capacity Defendants, each of whom is personally involved with
the enforcement and/or threatened enforcement of the challenged orders. Plaintiff will be
irreparably harmed if injunctive relief is not issued. Further, the public interest is served by the
vindication of constitutional and statutory rights, and the weighing of harms warrants issuing
injunctive relief. Because the scope of the violations extends to numerous other members of the
Army who are similarly situated, Plaintiff seeks an injunction that similarly covers others similarly
situated to remedy the violations at issue.
Class Action Allegations
28. Plaintiff reincorporates the preceding Paragraphs as if fully written herein.
8
29. The actions and violations herein complained of thousands of active or active-reserve airmen.
30. Pursuant to FRCP 23(a), (i) the class is so numerous that joinder of all members is
impracticable (with thousands of potential Plaintiffs); (ii) there are questions of law or fact
common to the class; (iii) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (iv) the representative parties will fairly and adequately
protect the interests of the class.
31. Pursuant to FRCP 23(b): (i) prosecuting separate actions by or against individual class
members would create a risk of: (A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of conduct for the party
opposing the class; (B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to protect their
interests; and (ii) the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
32. Plaintiff seeks a Plaintiff class, consisting of those persons who: (i) have been confirmed by
Air Force Chaplains to have a sincerely held religious belief against the Air Force’s vaccination
requirements; (ii) have submitted paperwork demonstrating and seeking a religious
accommodation; and (iii) have had their accommodation requests denied, by the relevant Air
Force convening authority, or on appeal to Defendant Miller.
CLAIM I – Violation of the Religious Freedom Restoration Act
33. Plaintiff reincorporates the foregoing as if fully written herein.
9
34. Pursuant to 42 U.S.C. 2000bb-1(a), “[i]n general Government shall not
substantially burden a person’s exercise of religion even if the burden results from a rule of general
applicability, except as provided in subsection (b).”
35. Pursuant to 42 U.S.C. 2000bb-1(b), “Exception. Government may substantially
burden a person’s exercise of religion only if it demonstrates that application of the burden to the
person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.”
36. Defendants have, and continue, to substantially burden Plaintiff’s exercise of
religion, in light of their vaccine mandates, along with their refusal to timely process Plaintiff’s
accommodation request to that requirement (even though this is required by applicable regulation),
do so not in furtherance of a compelling governmental interest, and do so in a manner that is not
the least restrictive means of furthering any compelling governmental interest.
37. Pursuant to 42 U.S.C. 2000bb-1(c), “[a] person whose religious exercise has been
burdened in violation of this section may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government.”
38. Plaintiff has been, and is being harmed, by these violations, and Plaintiff therefore
seeks, on his on behalf and on behalf of the class, damages against each of the Defendants in an
individual capacity, in an amount to be proven at trial.6
39. Further, Plaintiff seeks injunctive relief, to halt the ongoing violations of law and
to obtain compliance by the Defendants with same.
6
The U.S. Supreme Court has held that individual damages are available against violators.
Tanzin v. Tanvir, 141 S. Ct. 486 (2020).
10
40. Further, Plaintiff seeks his reasonable attorney fees and costs pursuant to 42 U.S.C.
1988(b) (providing that attorney fees and costs awards are available against the federal government
and its officials pursuant to RFRA claims).
CLAIM II – Violation of the First Amendment of the United States Constitution
41. Plaintiff reincorporates the foregoing as if fully written herein.
42. The First Amendment of the Constitution protects the “free exercise” of religion.
Fundamental to this protection is the right to gather and worship. See W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts...[such as the]
freedom of worship and assembly.”). As the Supreme Court has noted, “a law burdening religious
practice that is not neutral or not of general application must undergo the most rigorous of
scrutiny.” Church of the Lukumi Babalu Aye, Inc.v. Hialeah, 508U.S. 520, 546 (1993).
43. Defendants’ actions, as described herein, including hostility towards religious
beliefs, as well as the creation of secular exemptions from its policies, while refusing to
accommodate religious exemptions, constitute a violation of the First Amendment’s Free Exercise
Clause. Roberts v. Neace, 958 F.3d 409 (2020).
44. Plaintiff thus seeks declaratory and injunctive relief under 28 USC § 2201 and 28
USC § 2202 for these First Amendment violations, and reasonable attorney fees.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment against Defendants as prayed for, including:
A. That this Court issue preliminary injunctive and/or restraining order relief, to preclude
Defendants from taking enforcement/punitive action against Plaintiff, or others similarly
11
situated, during the pendency of this matter (or until or unless Defendants’ rescind their
current no-religious accommodation policy) related to his religious accommodation
request;
B. That this Court issue a declaration that the challenged orders are unconstitutional and
illegal under RFRA and/or the First Amendment, as applied to those submitting
accommodations that substantially burden sincerely held religious beliefs;
C. That this Court direct injunctive relief to order timely and good faith processing of such
accommodation requests, pursuant to existing DoD Instructions and RFRA;
D. That this Court direct injunctive relief to order Defendants to grant Lt. Poffenbarger’s
accommodation request pursuant to RFRA and award him damages;
E. That this Court certify the class as prayed for;
F. That Plaintiff be awarded his costs in this action, including reasonable attorney fees under
42 U.S.C. § 1988 and other applicable law; and
G. Such other relief as this Court shall deem just and proper.
Respectfully submitted,
/s/ Christopher Wiest___________

Christopher Wiest (OH 0077931)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
/s/Aaron Siri
Siri Glimstad, LLP
Aaron Siri (PHV forthcoming)
Elizabeth Brehm (PHV forthcoming)
200 Park Avenue, 17th Floor
New York, NY 10166
(212) 532-1091 (v)
12
(646) 417-5967 (f)

aaron@sirillp.com
/s/Zach Gottesman___________
Zach Gottesman (OH 0058675)
404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com
Attorneys for Plaintiff
13
Case: 3:22-cv-00001-TMR-SLO Doc #: 1-1 Filed: 01/02/22 Page: 1 of 2 PAGEID #: 15
DEPARTMENT OF THE AIR FORCE

445 AIRLIFT WING
WRIGHT PATTERSON AIR FORCE BASE
02-Oct-2021
MEMORANDUM FOR 2ND LT MICHAEL J. POFFENBARGER
FROM: 445 OSS/CC
SUBJECT: Order to Receive Mandatory COVID-19 Vaccine
References: (a) Secretary of Defense, Mandatory Coronavirus Disease 2019 Vaccination of

Department of Defense Service Members (24 August 2021)
E 6HFUHWDU\RIWKH$LU)RUFH0DQGDWRU\&RURQDYLUXV'LVHDVH9DFFLQDWLRQ
RI'HSDUWPHQWRIWKH$LU)RUFH0LOLWDU\0HPEHUV6HSWHPEHU
F AFI 48-110_IP, Immunizations and Chemoprophylaxis for the Prevention of
Infectious Diseases (16 February 2018)
On 24 August 2021, the Secretary of Defense issued a mandate for all members of the Armed
Forces under DoD authority on active duty or in the Ready Reserve, including the National
Guard, to receive the COVID-19 vaccine (Reference (a)). Subsequently, on September 2021,
the Department of the Air Force issued additional guidance (Reference (b)).
Mandatory vaccination will only use COVID-19 vaccines that receive full licensure from the
Food and Drug Administration (FDA).
As of 8 September 2021, the local medical facility did not have record of your COVID-19
vaccination. As a result, and in accordance with the above paragraph, I am ordering you to
receive an initial dose of a COVID-19 vaccine with full licensure approval from the FDA
AND provide proof by 3 October 2021. Additionally, you are ordered to receive the second
dose of the same vaccine AND provide proof by 7 November 2021.
D If you previously received the complete vaccination series but your military medical
records do not reflect it, you are required to provide proof of vaccination by the date listed
above.
E The due date above also applies to exemptions. This means you must provide either a
completed request for a religious accommodation addressed to WKH$)5&Commander
(delivered to me) or proof of a medical exemption approved by a military medical
provider.
The Pfizer COVID-19 vaccine is not the only option available for complying with this order.
Alternatively, you may choose to receive the two-shot Moderna COVID-19 vaccine or the single
shot J&J COVID-19 vaccine. If you choose to receive the 3IL]HURUModerna series vaccine, you
must comply with the two deadlines listed above. If you choose to receive the J&J vaccine, you
must comply with the first deadline listed above. It is YOUR responsibility to pay attention to
these
timelines. A request (to me) for good cause for an extension to this order must be received in
writing before the ordered due date.
5. If you have concerns about the COVID-19 vaccine, you have access to free advice and
counseling through any of the installation agencies listed below. The completion dates listed
above should provide a reasonable amount of time in which to coordinate.
a. Medical Concerns – the base COVID-19 vaccination point of contact is Colonel Jospeh
Lawlor, 445 AMDS, 937-257-5200
b. Legal Implications – the base Area Defense Counsel (ADC) can be reached at 257-7841.
For additional legal questions, the 445 AW Judge Advocate General is Lt Col Ryan
Albrecht, 445 AW/JA 937-257-3535
c. Religious Objections – the base Chaplain’s Office point of contact is Lt Col Brandon
Stephens, 445 AW/HC, 937-257-0589
Failure to comply with this lawful order may result in administrative and/or punitive action for
Failing to Obey an Order under Article 92, Uniform Code of Military Justice.
Digitally signed by
SOPKO.CHRISTOP SOPKO.CHRISTOPHER.J.12412
HER.J.1241271060 71060
Date: 2021.10.02 13:36:22 -04'00'
CHRISTOPHER J. SOPKO, Lt Col, USAF

Commander
1st Ind, 2ND LT MICHAEL J. POFFENBARGER 2UGHUWR5HFHLYH0DQGDWRU\&29,'9DFFLQH
MEMORANDUM FOR 445 OSS/CC
I acknowledge receipt of this order on 2FWREHU. I understand the datesfor starting

and completing the COVID-19 vaccination process. I also understand I must provideproof by
the dates listed in the order.
I understand a request for an extension to this order must be writing, prior to the due dates,
and can only be approved by the Commander.
MICHAEL J. POFFENBARGER, 2nd Lt, USAF

2d Ind to , 445 OSS/CC Order to Receive Mandatory COVID-19 Vaccine
445 OSS/CC BBBBBBBBBBBBB'$7(
On _________________(DATE), Member:
a. _____ provided proof of receiving an initial dose of a Pfizer or Moderna COVID-19

vaccination series;
b. _____ provided proof of receiving of a J&J COVID-19 vaccination;
c. _____ submitted a completed religious accommodation request;
d. _____ provided proof of an approved military medical exemption; or
e. _____ did not provide sufficient documentation and thus failed to comply with the order
and Paragraph 2 (below) applies. Member failed to comply with my previously issued
lawful order and is in violation of Article 92, UCMJ. Member must comply as soon as
possible or risk continued adverse consequences.

&RPPDQGHU
3d Ind to 445 OSS/CC , Order to Receive Mandatory COVID-19 9DFFLQH
445 OSS/CC BBBBBBBBBB'$7(
On _________________(DATE), Member:
a. _____ provided proof of receiving a completed Pfizer or Moderna COVID-19 vaccination

series; or
b. _____ did not provide sufficient documentation and thus failed to comply with the order
and Paragraph 2 (below) applies. Member failed to comply with my previously issued
lawful order and is in violation of Article 92, UCMJ. Member must comply as soon as
possible or risk continued adverse consequences.

Commander

AIR FORCE RESERVE COMMAND
22 October 2021
FROM: HQ AFRC/CC
555 Robins Parkway, Suite 250
Robins AFB GA 31098-2005
SUBJECT: Request for Immunization Exemption-2nd Lt Michael J. Poffenbarger, 445 OSS
1. I have reviewed your request for religious exemption from the recently approved COMIRNATY®/
Pfizer-BioNTech COVID-19 vaccine, the EUA COVID-19 vaccines that include Johnson’s Janssen and
the Moderna COVID-19 vaccines. I understand your concerns, which are based on your sincerely held
beliefs. After carefully considering the specific facts and circumstances of your request, the
recommendation of your commander and the MAJCOM Religious Resolution Team, I disapprove your
request for religious exemption from required immunizations, including the COVID-19 vaccine.
2. I do not doubt the sincerity of your beliefs. However, when evaluating your request for religious
exemption, I also had to consider the risk to our mission. All immunizations, including those listed
above, are an important element of mission accomplishment, as they contribute to the health, safety, and
readiness of the force. Given the importance of our mission, the Department of Defense and the
Department of the Air Force have a compelling government interest in maintaining a healthy and ready
military force through vaccination. Specifically regarding the COVID-19 vaccination, since less
restrictive means of protecting our force from COVID-19 are unavailable, all uniformed Airmen must be
fully vaccinated against COVID-19 and other infectious diseases. Individual medical readiness is a
critical requirement for maintaining a healthy and ready force.
3. If you choose to appeal this decision, please submit your written request to your commander within
72 hours of receiving notice of my decision.
4. A copy of this decision memorandum will be placed in your online personnel records. My point of
contact is Ch, Lt Col Stacey Hanson, stacey.hanson@us.af.mil, DSN 497-1221.
Digitally signed by
SCOBEE.RICHAR SCOBEE.RICHARD.W.11735566
D.W.1173556620 20
Date: 2021.10.25 18:10:22 -04'00'
RICHARD W. SCOBEE
Lieutenant General, USAF
Commander
cc:
4 AF/CC
455 AW/CC
445 OG/CC
445 OSS/CC
12/30/21, 11:40Case:
AM 3:22-cv-00001-TMR-SLO Doc #: Gmail
1-6 Filed:
- Notice of01/02/22 Page: 1 of 4 PAGEID #: 25
Covid Order Paperwork
Michael Poffenbarger <michael.poffenbarger@gmail.com>
Notice of Covid Order Paperwork

4 messages
KOJAK, CHRISTOPHER P Lt Col USAF AFRC 89 AS/DOLP <christopher.kojak.1@us.af.mil> Sun, Dec 12, 2021 at 5:17 PM
To: Michael Poffenbarger <michael.poffenbarger@gmail.com>
Hello Mike,
I hope you had a good weekend.
Attached is your order from 4AF/CC to receive your Covid vaccine when we discussed your RAR appeal being denied on
Friday.
Can you sign at your signature block on Page 2 and return to me? (Wet signature and scan is fine in lieu of a digital
signature.)
Let me know if you have any questions. Best way to reach me is on my cell. I am overnighting in Raleigh, NC tonight and
will be flying to California in the morning.
Chris
V/r,
Lt Col Chris Kojak
445 OSS/CC
WPAFB, OH 45433
(O) 937-257-6412
(C) 843-819-2063
COVID order post RAR order and endorsement (Poffenbarger).pdf

55K
Michael Poffenbarger <michael.poffenbarger@gmail.com> Tue, Dec 14, 2021 at 8:23 AM

To: "KOJAK, CHRISTOPHER P Lt Col USAF AFRC 89 AS/DOLP" <christopher.kojak.1@us.af.mil>
Good morning, Sir.
I will plan to get you a signed copy of this order today.
V/R,
https://mail.google.com/mail/u/0/?ik=b62e5794aa&view=pt&search=all&permthid=thread-f%3A1718980394336469625&simpl=msg-f%3A1718980394336469625… 1/2
12/30/21, 11:40Case:
AM 3:22-cv-00001-TMR-SLO Doc #: Gmail
1-6 Filed:
- Notice of01/02/22 Page: 2 of 4 PAGEID #: 26
Covid Order Paperwork
Michael Poffenbarger, 2Lt USAF
[Quoted text hidden]
Michael Poffenbarger <michael.poffenbarger@gmail.com> Tue, Dec 14, 2021 at 8:46 PM

Sir,
Attached is a photo of the signed 2nd page.
V/R,
Michael Poffenbarger, 2Lt
On Sun, Dec 12, 2021, 5:17 PM KOJAK, CHRISTOPHER P Lt Col USAF AFRC 89 AS/DOLP
<christopher.kojak.1@us.af.mil> wrote:
20211214_204339.jpg
4770K
Michael Poffenbarger <michael.poffenbarger@gmail.com> Wed, Dec 29, 2021 at 7:56 PM

Good Evening Lt Col Kojak.
In looking through our correspondence I noticed that I do not have a denial letter regarding my appeal.
Would you please forward it to me?
Thank you sir.
Very Respectfully,
Michael Poffenbarger, 2d Lt, USAF
On Sun, Dec 12, 2021, 5:17 PM KOJAK, CHRISTOPHER P Lt Col USAF AFRC 89 AS/DOLP
<christopher.kojak.1@us.af.mil> wrote:
https://mail.google.com/mail/u/0/?ik=b62e5794aa&view=pt&search=all&permthid=thread-f%3A1718980394336469625&simpl=msg-f%3A1718980394336469625… 2/2

AIR FORCE RESERVE COMMAND
10 December 2021
MEMORANDUM FOR 4 AF MILITARY MEMBERS
FROM: 4 AF COMMANDER
SUBJECT: Order to Receive Mandatory COVID-19 Vaccine
1. On 24 Aug 21, the Secretary of Defense issued a mandate for all members of the Armed Forces under
DoD authority to receive the COVID-19 vaccine. Subsequently, on 3 September 2021, the Department of
the Air Force issued additional guidance for all Air Force military members.
2. If AFRC/CC denies your religious accommodation request, you may appeal the denial. Should
you appeal, I am ordering you to submit your appeal to The Surgeon General of the Air Force
(AF/SG), through your chain of command, within 72 hours of notification that AFRC/CC has
denied your request. If you choose to appeal, your temporary exemption will continue until AF/SG
renders a final decision. If AF/SG approves your appeal, your exemption will go into effect. If AF/SG
denies your appeal, then your temporary exemption will be no longer be in effect.
3. If you do not appeal to AF/SG or if AF/SG denies your religious accommodation request appeal,
then I am ordering you to receive an initial dose of a COVID-19 vaccine with full licensure
approval from the FDA AND provide proof of vaccination by 1200 hours (noon) during your first
duty day in military status, to include, but not limited to, AT, RMP, RPA, UTA, or IDT.
Additionally, you are ordered to receive the second dose of the COVID-19 vaccine AND provide
proof no later than twenty-one (21) days after the first dose for Pfizer or twenty-eight (28) days for
Moderna.
4. The Pfizer COVID-19 vaccine is not the only option available for complying with this order.
Alternatively, you may choose to receive the two-shot Moderna COVID-19 vaccine or the single shot J&J
COVID-19 vaccine. If you choose to receive the J&J vaccine, you must comply with the first deadline
listed above.
5. When you were first ordered to receive the vaccine, you were provided access to medical, legal, and
religious counseling. These resources are still available to you should you have additional questions. If
you have legal questions, you may contact your local area defense counsel or contact the AFRC Defense
Counsel at 478-327-4911. You will not be granted an extension to this order to seek counsel absent good
cause. If you want an extension, you must request an extension from me in writing.
6. Failure to comply with this lawful order may result in administrative and/or punitive action for Failing
to Obey an Order under Article 92, Uniform Code of Military Justice.
JEFFREY T. PENNINGTON, Maj Gen, USAF

Commander
1st Ind,
MEMORANDUM FOR 4 AF/CC
I acknowledge receipt of this order on 10 Dec 2021 . I understand the dates for starting and completing
the COVID-19 vaccination process. I also understand I must provide proof in accordancewith the
timelines listed in the order.
MICHAEL J. POFFENBARGER, 2Lt, USAF
2d Ind to 4 AF/CC, 10 Dec 21, Order to Receive Mandatory COVID-19
Vaccine4 AF/CC
MEMORANDUM FOR 2Lt MICHAEL J. POFFENBARGER
On 3 Jan 2022, Member:
a. provided proof of receiving an initial dose of a Pfizer or Moderna COVID-19 vaccination

series OR provided proof of receiving of a J&J COVID-19 vaccination;
b. did not provide proof of vaccination, and thus failed to comply with the order and is in
violation of Article 92, UCMJ.
RAYMOND A. SMITH, JR., Colonel USAF

Commander
3d Ind to 4 AF/CC, 10 Dec 21, Order to Receive Mandatory COVID-19
Vaccine4 AF/CC
MEMORANDUM FOR 2Lt MICHAEL J. POFFENBARGER
On 3 Jan 2022, Member:
a. provided proof of receiving a completed Pfizer or Moderna COVID-19 vaccination series

OR provided proof of receiving of a J&J COVID-19 vaccination; or
b. did not provide sufficient documentation and thus failed to comply with the order. Member
failed to comply with the 4 AF/CC order and is in violation of Article 92, UCMJ.
RAYMOND A. SMITH, JR., Colonel USAF

Commander

PoffenbargerComplaint AsFiled

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Case: 3:22-cv-00001-TMR-SLO Doc #: 1 Filed: 01/02/22 Page: 1 of 14 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT

Hon. FRANK KENDALL :

Lt. General ROBERT I. MILLER :

Lt. General RICHARD W. SCOBEE :

Maj. General JEFFREY T. PENNINGTON :

Lt. Colonel CHRISTOPHER KOJAK :

Colonel RAYMOND SMITH :

United States Of America :

PLAINTIFF’S VERIFIED CLASS ACTION COMPLAINT FOR DECLARATORY

Verified Complaint as follows:

burdened those beliefs.

with the complained of conduct.

Jurisdiction and Venue

other applicable law.

6. Venue is proper in this District under the provisions of 28 U.S.C. § 1391(e)(1)(A)

8. Plaintiff then began the administrative process to seek a religious accommodation

Defense Instruction (“DoDI”) 1300.17.1

9. Ultimately, Plaintiff was commissioned in September, 2021, and permitted to

true and accurate copy of that order is attached hereto as Exhibit 2.

and others similarly situated.

appeal, a true and accurate copy of which is attached hereto as Exhibit 5.

16. In fact, as of the date of this Complaint, absolutely zero religious

administrative exemptions.4 Miller’s actions are identical to Scobee, reflecting a hostility to

religious accommodation requests, while accommodating administrative and medical exemptions.

Justice (“UCMJ”) (10 U.S.C. § 892).

Plaintiff, including the threat of punitive actions including court-martial.

is a must for mission accomplishment.

24. Furthermore, the vaccination requirement, including with respect to COVID-19,

request by, without limitation:

a. Requiring testing to determine infection;

b. Temperature checks and/or other screening to determine infection;

as to develop what is now a recognized, long lasting, natural immunity;5

vaccinated for, yet they remain able to serve and deploy;

f. Place Lt. Poffenbarger in a position and/or Military Occupational Specialty that is

an exemption, which is not a burden;

assignment to a unit that does not deploy overseas; and/or

i. As a final option, honorably discharge Lt. Poffenbarger.

Injunctive Relief Allegations

situated to remedy the violations at issue.

Class Action Allegations

28. Plaintiff reincorporates the preceding Paragraphs as if fully written herein.

protect the interests of the class.

appropriate respecting the class as a whole.

requirements; (ii) have submitted paperwork demonstrating and seeking a religious

Force convening authority, or on appeal to Defendant Miller.

CLAIM I – Violation of the Religious Freedom Restoration Act

33. Plaintiff reincorporates the foregoing as if fully written herein.

34. Pursuant to 42 U.S.C. 2000bb-1(a), “[i]n general Government shall not

applicability, except as provided in subsection (b).”

35. Pursuant to 42 U.S.C. 2000bb-1(b), “Exception. Government may substantially

means of furthering that compelling governmental interest.”

36. Defendants have, and continue, to substantially burden Plaintiff’s exercise of

do so not in furtherance of a compelling governmental interest, and do so in a manner that is not

the least restrictive means of furthering any compelling governmental interest.

proceeding and obtain appropriate relief against a government.”

individual capacity, in an amount to be proven at trial.6

to obtain compliance by the Defendants with same.

and its officials pursuant to RFRA claims).

CLAIM II – Violation of the First Amendment of the United States Constitution

41. Plaintiff reincorporates the foregoing as if fully written herein.

43. Defendants’ actions, as described herein, including hostility towards religious

Clause. Roberts v. Neace, 958 F.3d 409 (2020).

1st Ind, 2ND LT MICHAEL J. POFFENBARGER 2UGHUWR5HFHLYH0DQGDWRU\&29,'9DFFLQH

I acknowledge receipt of this order on 2FWREHU. I understand the datesfor starting

2d Ind to , 445 OSS/CC Order to Receive Mandatory COVID-19 Vaccine

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